Creative sentencing like tort reform may not be based on good judicial reasoning
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For well over ten-years my injured clients have been impacted by the faulty reasoning of tort reformers who deform recovery rights while conveying just the opposite message. I’ve watched as legislation is titled with names conveying one message while actually doing the opposite. Currently we are experiencing the use of labeling to convey a message about a person’s character while we are distracted from a politician’s inexperience. All use words creatively while misusing the public trust through the use of fear mongering and pandering to unfounded fears.
Creative sentencing if improperly designed can also be a misuse of public trust. Here are some examples of such creative sentencing.
A Dodge County, Wisconsin Judge ordered a convicted drunk-driver to pay for two years worth of college costs, including tuition, books, room and board for the 15-year-old son of the man she was convicted of killing, as part of her criminal sentence. It was reported in Wisconsin where they elect judges and in Chicago at the Tribune.
In Florida a seventeen year old was found to have left the scene of an accident after he ran over a man lying in the roadway. The investigation did not blame the boy for causing the man’s death but instead found the man was a speeding drunk, driving a motorcycle and after losing control crashed and was lying in the street. The St. Petersburg Times reported this Judge’s creative sentence included carrying the dead man’s picture in his wallet and replacing the boy’s MySpace page with a picture of the dead guy. For five or more years the boy will be required on the anniversary date of the death to spend 48 hours in jail.
A woman in Ohio was ordered to spend a night in the woods without food, water or entertainment as part of her sentence after being convicted of abandoning 35 kittens.
A man who called police “pigs” was ordered to stand on a street corner next to a pig with a sign saying the pig was not a police officer.
In another instance a man who stole from an adult bookstore was ordered to sit blindfolded on a chair outside the bookstore with a sign that read “See No Evil”, so that passing traffic could see him. All reported in the news as instances of what some call creative sentencing.
In another instance I recall seeing on the TV show 60 Minutes a case where the young man who caused a death by drunk driving being sentenced to writing a weekly $1.00 check to the victim’s parents and having to inscribe the victim’s name on the memo line.
The University of South Carolina published the “Creative Sentencing in Juvenile Court – Enhancing Probation as an Alternative to Commitment” manual that includes letters of apology, essays, book reports, restricting privileges and court ordered participation in school and after-school activities. Canada has applied creative sentencing to companies found in non-compliance with OSHA regulations. The MADD Organization has their suggestions for creative sentencing that include Judge Ted Poe of the Criminal District Court in Harris County, Texas believe probation should include three things: 1. Doing something for the victim. 2. Something for himself. 3. Something for the community.
In an involuntary manslaughter case (causing a death while driving while intoxicated), a drunk driver was sentenced to 10 years probation by a jury. (Texas allows defendants to choose judge or jury sentencing) The defendant had killed a 19-year-old husband, the father of a two-month-old daughter. Even though the jury sentenced probation, the sentencing Judge set the conditions of probation. Along with jail time, the defendant was required to make monthly child support payments for 10 years to the little girl who will never know her daddy. At the location of the homicide, the defendant was ordered to erect a marker, a cross. He was required to go to the scene, dig the hole and pour concrete to hold the marker. The defendant was also ordered to ride with the local ambulance service to see first-hand the injuries caused by DWI offenders. The defendant must be made to realize the impact of his crime.
Defendants have been ordered to pay money, work, support their dependents, “legitimize their children born out of wedlock" (so child support can be ordered), report periodically to the court, and adhere to curfews, house arrest, boot camps and ignition interlock devices. Community service is a normal condition. Judge Poe normally assigns “20 hours a month of community service for the duration of the probation.” Some drug and alcohol related crimes have brought requirements to give a speech. Or reading books to hospitalized children. Impounding vehicles used in the commission of alcohol related crimes is being suggested more and more. Judge Martone from Michigan takes the sentencing phase of trials to schools so that young citizens can observe first-hand the impact. Judge Ellen Venzer from Miami does this about every 60 days. Judge Matrone has sentenced youthful offenders guilty of violating noise ordinances with loud rap music to be locked in a room for several hours while Wayne Newton CD’s are played. “His sentences are instead designed to allow them to learn the consequences of their actions and hopefully change the course of their behavior.” The NHTSA publishes “A How To Guide for Victim Impact Panels” where a group of three of four victims educate repeat offenders about how their lives were impacted.
Some creative sentencing is geared towards educating and exposing the criminal defendant to consequences they and others experience. But when is a creative sentence wrong? At what point does creative sentencing cross the line of having non-judicial motives? If the creative sentencing is about embarrassment, the Scarlet Letter Approach, the purpose seems more towards retribution and carries with it a false sense of doing justice.
The wrong approach seems to be in those instances where the creative sentencing makes a splashy headline. Generally speaking lawyers cringe when we read them.
“However, the judge sentenced him to five years of probation. But, in addition to other, more standard conditions, he also is requiring Cornett to carry a photo of Duke Gray with him everywhere he goes and to replace his MySpace page, which referred to drinking and partying, with the picture. And, once a year, as long as he is on probation, he must serve 48 hours in jail on the anniversary of Gray's death, the judge decided.”
When the retribution gets away from the norm it can lead to a waste of the Court’s time and scarce judicial resources. It can assume financial success where none has historically existed in a person's life. What feels good to society may not be very sound judicial reasoning. Getting too creative can lead to faulty decision-making. Tomorrow I'll discuss an example of what seemed at the time to feel good but was faulty legal reasoning.